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the said Hughes, Baten, and others convey-, said plaintiffs therein and appellants here, ed to appellee, by specific metes and bounds, but that no judgment of partition had yet a certain strip or parcel of land across said been rendered in said partition proceeding, North, Middle, and South Hooe surveys, said but that, nevertheless, the interest of appelstrip being 50 feet in width and in length lants, as tenants in common with said sufficient to cross all of said surveys; that Hughes, Baten, and others, could be and the purpose of appellee in purchasing this would be fully and adequately protected in strip of land across said Hooe surveys was to said partition suit in Hardin county, when make it the owner thereof, and enable it to judgment therein should be rendered, and build and construct a tram railroad over that such judgment could there be rendered said Hooe surveys from its mill on the W. S. as would give effect to the deed made by said Brown survey in Tyler county, to the timber Hughes, Baten, and others to appellee, and owned by it on the George Brown league in confirm in it the specific portions of said Hardin county, so that it might cut and re- North and South Hooe surveys as were conmove said timber to its said mill; that ap- veyed to it by said deed, and that at the pellee had commenced the construction of its same time the interest of appellants could tram railroad, and at the time of the presen-. and would be fully protected in said partitation of said petition to said judge, praying tion proceeding. for the injunction herein, had nearly reach-; (5) It was further alleged in the petition ed the north line of the North Hooe survey that appellee feared that appellants would with its said tram railroad.

interfere with its attempt to construct its (3) Appellee alleged that at the date of said said tram railroad across said Hooe survey, deed to it from Hughes, Baten, Gordon, Lit- and would interfere with its operation of its tle, Parker, and McLean, they, the said said tramroad, as appellants had threatened Hughes, Baten, and others, owned jointly to do, and, if so, appellee would be prevented with the appellants here the said North Hooe from manufacturing its said timber, and survey and the south half of the South Hooe would be greatly and irreparably damaged, survey, but that such ownership was as ten- etc. ants in common, the interests of said owners The prayer of appellee found in the petition being undivided in said Hooe surveys; and was as follows: it is alleged by appellee that in consequence. “Plaintiff prays that the defendants be cited of said deed to it by said Hughes, Baten, and in terms of law to answer this petition, and that

, others, tenants in common with appellants issue his most gracious writ of injunction, re

pending the final hearing hereof, your honor do here, appellee became the sole owner of said straining the defendants and each of them, their strip of land across said Hooe surveys, and agents, servants and employés, from in any way that appellee is entitled to the exclusive pos- possession of that portion of the North Hooe

interfering with or disturbing plaintiff in its session thereof, for the exclusive operation survey and south half of the South Hooe surof its contemplated tram railroad; that said vey described in the deed from Thomas Hughes strip of land conveyed to appellee across and others to this plaintiff, and herein describsaid Hooe surveys is of no greater value ed; that said defendants, their agents, servants

and employés, be enjoined and restrained from than any other portion of said Hooe surveys, in any wise interfering with the track or tramand that appellants' cotenants, Baten, road placed upon the portion of the North Hooe Hughes, and others, owned a much larger and south half of the South Hooe surveys deinterest in said North and South Hooe sur-to plaintiff, and that they be enjoined and re

scribed in said deed from Thomas Hughes et al. veys than was conveyed by their said deed to strained from interfering with the operation appellee, and that under such circumstances thereof pending the final hearing of this cause; appellants' cotenants, Hughes, Baten, and that your honor do, upon such final hearing, others, had a right to convey to appellee the such other and further relief, both general and

perpetuate said injunction and grant plaintiff specific portions of said North and South special, to which it may be entitled hereunder, Hooe surveys, as they undertook to do by and as in duty bound it will ever pray. said deed, and that appellee was entitled to The order made by Judge Llewellyn in construct its tram railroad upon those por-chambers and without notice to appellants, tions of said surveys so conveyed, and to but requiring them to make a bond in the use the same for its tram railroad purposes, sum of $1,000, was as follows: to the exclusion of and without being inter- "It is therefore considered, ordered, adjudged fered with by appellants.

and decreed by the court that the defendants (4) It is further shown from the petition [naming them), their servants, agents and emthat at the time the deed from Hughes, Ba-ployés, be restrained and enjoined from in any

way interfering, with plaintiff's possession of ten, and others, appellants' cotenants, was that portion of the North and South and Middle made to appellee, whereby appellants' said Hooe surveys described in plaintiff's petition, cotenants attempted to convey certain des-on which it is now engaged in constructing a ignated portions of said North and South district court of Tyler county, Texas, issue writs

tram railroad track; and that the clerk of the Hooe surveys to appellee, a suit for parti- of injunction as provided by law, and that the tion had been instituted in Hardin county by same be made returnable to the next term of the said Hughes, Baten, Gordon, Little, Par- the district court of Tyler county." ker, and McLean against the appellants, in Appellants here assign a number of reawhich suit partition of said North and South sons for which they claim the injunction in Hooe surveys is prayed for, as between the this case was improvidently and erroneously granted, in so far as the same relates to the, award to appellee exclusive possession of

, North Hooe survey, and the south half of the those portions of the North and South Hooe South Hooe survey, but we shall only men- surveys described in said deed of appellants' tion the two principal contentions made by cotenants to appellee, and to permit appellee appellants.

to go ahead and construct valuable improveAppellants' first contention, in effect, is ments thereupon in the shape of a tram railthat since the petition of appellee showed road, and to authorize its exclusive operation upon its face that appellee could in no event for the private benefit and profit of appellee, have any greater right in the North Hooe to the total exclusion of appellants, and over survey and the south half of the South Hooe their protest. After thinking the matter over survey than that of a tenant in common with carefully, we cannot concede that this conappellants, appellee was not entitled to have tention made by appellee is correct. a court of equity, by an injunctive writ, in We are fully aware of the rule in this advance of partition, grant any certain desig- state to the effect that where one tenant in nated portion of said surveys so owned in common conveys to a stranger a designated common, to the exclusion of appellants, for portion of the common estate, although such the private use and benefit of appellee. In conveyance be without the consent or knowlother words, it is the contention of appel- edge of the grantor's cotenant, a court of lants, in effect, that appellee's petition upon equity, upon partition proceedings, will give its face showed no legal or equitable right effect to a deed thus made by one cotenant, to the injunction prayed for, and which was and will confirm in the stranger to the esgranted in this cause, and this contention, tate the title to a specific portion of the same, we have concluded, must be sustained. As where, upon hearing all of the facts adduced far back as the case of McKey v. Welch, 22 upon the hearing in the partition proceeding, Tex. 390, the Supreme Court of this state, it can be shown that a partition of the estate speaking through Chief Justice Wheeler, can be equitable, made by allowing the stransaid:

ger to take such designated portion under “It appears to be well settled, and upon good such deed, and that the interest of the coreasons, that one joint tenant, or tenant in common, cannot convey a distinct portion of the tenants, not a party to such deed, can be fulestate, by metes and bounds, so as to prejudice ly protected in such partition proceeding, by his cotenant; for, to give effect to such aliena- giving effect to such deed. This is a welltions, as against the cotenants of the grantor, established rule in this state, and appellants distinct tracts or parcels of the estate, held in do not here question its soundness, and if, common, to the injury of the cotenants. . As one upon hearing the facts in the partition protenant in common has no right, on partition, to ceeding in Hardin county, that court should select any particular portion of the land, and insist on having his part set off in that specific believe and find therefrom that the designatportion, so he cannot convey such a right to his ed portions of the North and South Hooe grantee."

surveys now claimed by appellee under the This rule, as thus announced, has been deed from Hughes, McLean et al. can be alfollowed by the appellate courts of this state lowed him, and at the same time that the indown to date, without a single exception, terests of appellants, as cotenants, can be in so far as we have been able to find, and fully protected, after so doing, then, doubtless, we do not understand that counsel for appel- that court will so decree, and would be corlee contended that the rule is otherwise. But, rect in doing so, but we think that to give efas we understand appellee's contention here, feet to the order of Judge Llewellyn in this it is to the effect that a deed by one or more case, which, in advance of hearing in the partenants in common, without the acquiescence tition proceeding, has, in effect, given to apor consent of other cotenants, conveying a pellee the right of exclusive possession of distinct portion of the common estate to a certain portions of the North and South Hooe stranger, will be upheld and given effect in equity, where, upon partition proceedings be surveys, as against appellants, and over their ,

protest, and authorized appellee to place tween all the tenants in common of the es- thereupon valuable improvements for its own tate, such can be done without injury to the private use and profit, would be not only to

, tenants in common, who are not parties to such deed; and appellee says, in effect, that deny the rule well established in this state

that all tenants in common have a right of since it is alleged in its petition that upon partition in the suit for that purpose pend- possession in all portions of the common ing in Hardin county, the specific portions of estate, but would be also in effect to deterthe North and South Hooe surveys attempted mine, in advance of the partition proceeding to be conveyed to appellee by appellants' now pending, that appellee should have those said cotenants, Hughes, Baten, and others, specific portions of this common estate claimcan be allowed and confirmed in appellee, ed by him. We have been unable to find any without injury to appellants, Judge Llewel- adjudicated case in this state that could be lyn, as the district judge of Tyler county, was construed as authority for the order made by authorized in this proceeding to make the Judge Llewellyn in this case, and none of the order which he did, and which has the effect, authorities cited by appellee go to any such in advance of an ascertainment of the facts extent.

a tenant in common in possession of a part of pellants, which leaves out entirely other cothe common estate, and using and enjoying tenants, in fact, all of appellants' cotenants same as such, and whose possession and use under whom appellee now claims, and we is sought to be interfered with and prevented hardly see how the district court of Tyler by a wrongful act on the part of appellants, county could proceed to partition this estate as its cotenants, but the situation here is that between appellants and appellee without apappellee desires now to go into exclusive pos- pellants' other cotenants being made parties session of a certain designated portion of the thereto, and we cannot assume that they will common estate, for the purpose of building be made parties thereto. It was suggested, and constructing a tram railroad thereon, and however, by appellee in the argument here, to operate the same for its own private use that this court ought to assume that the disand benefit, to the exclusion of appellants, trict court of Tyler county will make no order and the judge's order has the effect to permit that will be in any way inconsistent with or appellee to do this, and we hold that the embarrassing to the partition proceeding in court was unauthorized, from a legal or Hardin county, notwithstanding the prayer in equitable standpoint, to make such order. the petition of appellee is that the district

It is next contended by appellants that the court of Tyler county, upon final hearing, order of Judge Llewellyn was improvidently shall perpetuate the injunction which was and erroneously made, for the reason that it granted by the judge in this case. has the effect to greatly embarrass the parti- We have concluded that for the reasons tion proceeding now pending in Hardin coun- specifically mentioned above, Judge Llewellyn ty between appellants and appellee's grantors, erred in granting the writ of injunction in by bringing new issues into such partition this case, in so far as the same pertains to proceeding, and to change the situation and the North and South Hooe surveys, and for status of the parties, and condition of the such error the judgment is reversed, and the common estate, as they existed when the par- injunction, to that extent, is here now cantition proceeding was instituted in Hardin celed and set aside, and all costs of this apcounty, and that for this reason Judge Llew- peal adjudged against the appellee. ellyn should not have granted the order, and we believe that this contention on the part of appellants is sound.

BOARD et al. v. EMERSON-BRANTINGAt the time the partition proceeding for this

HAM IMPLEMENT CO. (No. 7922.) common estate was instituted by appellee's grantors against appellants, in Hardin coun

(Court of Civil Appeals of Texas. Dallas.

April 20, 1918. Rehearing Denied ty, the simple matter for determination, in so

May 18, 1918.) far as the petition here discloses, was merely 1. CHATTEL MORTGAGES Ow277 - FORECLOto divide the interests between the co-owners, SURE – SUPPLEMENTAL PETITION-GENERAL and there was nothing pertaining to any equi

DEMURRER. ties claimed by any of them for improvements fendants' answer, in a suit on notes and chat

A supplemental petition in reply to demade upon any portion of the common estate, tel mortgage on machinery: given by the purand no question of the value of improvements chaser thereof, held sufficient when tested by placed thereon by any cotenant, would be be- general demurrer. fore the court for consideration, and it would 2. SALES O16812(6)-REMEDIES FOR BREACH

-NOTICE. seem that it was and is the right of appel

Where the seller of machinery stipulated in lants to have that partition proceeding dis- the contract that the buyers must notify it by posed of and concluded upon the facts as they registered letter of any defects therein within existed when the same was instituted; but six days of the first use of the engine, the if appellee should be permitted by the judge bound thereby.

stipulation was reasonable, and the buyers were of the district court of Tyler county to go 3. JUDGMENT O 256(2)—AUTHORITY OF COURT ahead, in advance of a judgment in the par- TO ENTER-SPECIAL VERDICT. tition proceeding, and construct a tram rail

Although the trial judge is required to renroad on designated portions of the common dict, yet where the verdict finds issues in favor

der judgment in conformity to a special verproperty, it would necessarily follow that the of one or the other party, and it finds facts district court of Hardin county would be call- supported by the evidence which clearly entitle ed upon to take into consideration, in that one to a judgment, the court should so render

judgment. partition proceeding, these new equities that

4. SALES O 121 - ACCEPTANCE – TIME FOR appellee would claim, or his grantors claim

RETURNING Goods—WAIVER OF RIGHT TO for him, and very probably the partition pro- RESCIND. ceeding would be much more embarrassed and Where the undisputed evidence shows that difficult of solution and disposition, by rea- months, after knowing of the defects therein,

the defendants used the machinery for several son of the building and construction of these without offering to rescind, they confirmed the valuable improvements, and exclusive appro- contract of purchase and waived the right to priation by appellee. And, further, it occurs

rescind. to us that the effect of this proceeding is real. 5. CHATTEL MORTGAGES Cm79-FRAUD AND

Ow79—

DECEIT-EVIDENCE. ly to institute another partition proceeding in Evidence, in a suit upon notes and chattel Tyler county between appellee here and ap- . mortgage given by purchaser of machinery, held

On For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

insufficient to show that fraud or deceit wassers. Plaintiffs in error entered into a writpracticed inducing defendants to sign the con- ten contract for certain machinery with detract.

fendant in error. When plaintiffs in error 6. SALES O 418(19)—BREACH OF CONTRACT.

Where the seller of machinery did not agree called for it defendant in error did not have to pay for labor or repairs thereon, the buyer the kind first ordered, and it would require cannot recover therefor.

some time to secure it from the factory. 7. SALES 418(19)-BREACH OF CONTRACT- Having other kinds in stock plaintiffs in erDAMAGES-SPECULATIVE DAMAGES.

In a suit by seller to recover on notes and ror agreed to take another kind from that chattel mortgage given by buyer for purchase which was first ordered, which was deliverof an engine and plows, the defendant cannot ed. The notes, mortgage, and contract were recover damages for breach because of defects all signed and executed, and the plaintiffs in in machinery, preventing them from plowing for others; the profits thereof being conjectural error hauled the machinery home. The maand speculative.

chinery purchased was one Big 4-20 Model 8. SALES O 418(19)-BREACH OF CONTRACT- “D” Gasoline Tractor, and one 2-36-10 EmDAMAGES.

erson Disc Plow. In a suit for price of engine and plows, the Early in May, 1915, the plaintiffs in error buyer cannot recover damages resulting from inability to plow for others due to defects in tested out the machinery and the discs machinery, where the buyer did not inform the furnished, which proved unsatisfactory, and seller at the time of purchase that he expected defendant in error was notified and others to plow for others.

were furnished by it and accepted by plainAppeal from District Court, Dallas Coun- tiffs in error, who proceeded to use the maty; E. B. Muse, Judge.

chinery without any offer to return it and Suit by the Emerson-Brantingham Imple- rescind the trade. They plowed 350 or 400 ment Company against S. J. Board and an- acres of land for themselves and threshed other. Judgment for plaintiff, and defend- 8,000 bushels of wheat during 1915 without ants appeal. Affirmed.

making any offer to defendant in error to Ross & Zumwalt and J. H. Synnott, both return it, and it was laid up on December of Dallas, for appellants. Spence, Haven & 15, 1915.

15, 1915. After being in plaintiffs in error's Smithdeal, of Dallas, for appellee.

possession for twenty days they wrote de

fendant in error, “Our engine and new plow RAINEY, C. J. Suit was by defendant in we got last week are doing fine.” Plaintiffs error against plaintiffs in error on three in error knew of the defect in machinery promissory notes aggregating $2,000, with in- complained of early in May, but continued terest and attorney's fees, and to foreclose a to use it for their own use until December chattel mortgage on certain machinery for 4, 1915, when they wrote defendant in error which said notes were executed as shown that the tractor had entirely failed and reby a written contract of sale. Plaintiffs in quested defendant in error to repair it. error denied under oath the written contract, and alleged that the machinery was

Opinion. bought upon a verbal contract, and further, [1] The first error assigned is to the court pleaded failure of consideration; that de overruling the general demurrer to plaintiff's fendant in error made certain warranties first supplemental petition. Said supplemenwhich had been breached, and further plead-tal petition is in reply to defendants' aned for damages. In replication defendant in swer, which answer, in effect, denies the error set up the written contract, and, among validity of the notes; also setting up agreeother things, that if said machinery failed ments between the parties in relation to the to comply with the warranties after six purchase of the machinery, false representadays' test plaintiffs in error were to notify tions made by plaintiff as to the capacity defendant in error in writing, which plain- and quality of the machinery, and a breach tiffs in error failed to do; that said ma- of the warranties. The said supplemental chinery was delivered to plaintiffs in error petition also pleaded the written contract on April 30, 1915, and accepted and was which was signed by both the plaintiff and used by plaintiffs in error, who used said defendants, and other matters which render machinery plowing their land and threshing it not subject to a general demurrer. There their grain, and exercising the right of own- are 15 objections set forth by defendants as ership over it until December 15, 1915, and reasons why the general demurrer should be they could not now be heard to say that it sustained, but if any are good there is had not been accepted. The case was sub- enough in the supplemental petition to renmitted to a jury on special issues and an der it not liable to the general demurrer. swers returned. Both sides moved for judg

[2] Plaintiffs in error complain in their ment thereon, and the court found for de- second assignment of error of the overrulfendant in error, from which this appeal is ing of special exception No. 3. "Said parataken.

graph of plaintiff's petition pleads that part Conclusions of Fact.

of the written contract wherein the defendDefendant in error is a dealer in farming ants are required within six days of the implements and plaintiffs in error are farm- ) first use of the engine to notify plaintiff by

1

registered letter of defects in said engine;' in threshing their grain and plowing their land the special exception being that the plaintiff for more than six months after they had discovshould not be permitted to claim or assert as ered the alleged defects in the said engine. They a matter of defense said provision, for the accepted said engine and cannot refuse to pay

to reason that the limitation shown to be im- the purchase price thereof. The court thereposed upon defendants with reference to the fore did not err in overruling plaintiffs in ertime within which defendants should discov- ror's motion for judgment and in granting de

fendant in error's motion for judgment. er and make known defects in said engine, and limiting such time to six days, is un

The evidence shows without dispute, and reasonable, void, and in contravention of the was so found by the jury, that plaintiffs in statutes.” There is no error in this ruling error used the machinery for their own beneof the court, as the validity of said clause fit for several months, knowing of the dein the contract is upheld by our appellate fects, without offering to rescind. By thus court. Shearer v. Gaar, 41 Tex. Civ. App. acting they confirmed the contract of pur39, 90 S. W. 684; Buffalo Pitts Co. v. Alder- chase and waived the right to rescind, and

this warranted the trial court in directing a dice, 177 S. W. 1044.

[3, 4] The plaintiffs in error's third and verdict for defendant in error. Cash Regisfourth assignments complain of the court ter Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. for not rendering judgment for them on the W. 857; Bancroft v. Implement Co., 194 S.

W. 991. findings of the jury. The jury found, in effect, that the warranties failed; that de

[5] The evidence fails to show any fraud fendant in error was notified after six days or deceit practiced by defendant in error in

' use that fraud was practiced upon plaintiffs procuring the signatures of the plaintiffs in in error and the consideration for the notes tiffs in error both swear that they signed the

error to the contract relied on by it. Plainhad failed. The jury also found that plain- contract; that there were no misrepresentatiffs in error discovered the full extent of the defects of the engine sold them by de- they make any legal excuse why they did

tions made by the defendant in error, nor do fendant in error before they ceased to use sign it, and of not knowing its contents. the same in November, 1915; that plaintiffs

[6] Defendant in error did not agree to in error plowed 350 or 400 acres of land and furnish the plaintiffs in error any parts or to threshed 8,000 bushels of grain. They further answered in the affirmative the follow- Therefore funds expended by plaintiffs in

pay for labor for the repair of said engine. ing issue:

error on same and the value of labor in re“If you find that the defendants, plowed any pairing same is not recoverable against deground and threshed any grain with said machinery in answer to the above question, then fendant in error. state if any of said ground was plowed or any [7] The plaintiffs in error are not entitled of said grain was threshed after the defendants to recover for damages on account of not had learned that the machinery was defective being able to do plowing for other people; in any of the ways alleged in their answers or testified to by them. Answer: Yes."

such damages

damages claimed being conjectural, While the law requires a trial judge to speculative, imaginery, and uncertain profits. render a judgment in conformity to a spe

[8] It was shown in this case, and so found cial verdict, yet when the verdict finds is. by the jury, that plaintiffs in error did not sues in favor of one or the other party, and tell the defendant in error at the time or beit finds facts supported by the evidence which fore they agreed to purchase said engine clearly entitles one to a judgment, the court that they expected to plow for other people, should so render judgment. Should the trial Mills Co. v. Iron Works, 1 Tex. Civ. App.

nor how much land they expected to plow. court, under such circumstances, have de- 683, 22 S. W. 1097; Railway Co. v. Hill, 63 clared a mistrial and granted a new trial this Tex, 381, 51 Am. Rep. 642. court would have the power, under the law,

The judgment is affirmed. to render such judgment as the trial court should have directed. Henne v. Moultrie, 97 Tex. 216, 77 S. W. 607.

Defendant in error in reply to assignments MURCHISON et al. v. MURCHISON et al. 3 and 4 submits the two following counter

(No. 253.) propositions :

"(1) Where vendees of a traction engine use (Court of Civil Appeals of Texas. Beaumont. the traction engine iņ plowing their lands and

May 1, 1918.) threshing their grain for a period of more than six months after they had learned of defects in 1. INSURANCE Omw448 LIFE INSURANCE said traction engine, they cannot be heard to MURDER OF INSURED BY BENEFICIARY. say that they have not accepted said traction Despite Const. art. 1, § 21, and Rev. St. engine, because the long-continued use of the 1911, art. 2465, providing that no conviction traction engine by the vendees is utterly in- shall' work forfeiture of estate, the beneficiary consistent with the right of rejection, and con- named in a life insurance policy, who felonisistent only with the claim of title and owner-ously kills insured to accelerate the due date ship.

of the policy and collect the money, cannot re"(2) The findings of the jury established the cover the proceeds of the policy against the infact that the plaintiffs in error used the engine i surance company issuing it.

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